The patent law is rooted in capitalism. To grant to "any person who
has invented any new and useful process, machine, manufacture, or
composition of matter, or any new and useful improvement thereof," 2
the privilege "of the sole working or making"3 of whatever he has
discovered is a peculiarly capitalistic device. Its philosophic justification is that of property itself: that the artisan is entitled to the exclusive enjoyment of the product of his labor-in this instance "a
new trade" or idea-and that to protect him in the enjoyment of what
he has contrived will encourage assiduity and ingenuity in economic
pursuits beneficial to the community at large. It was, therefore, no
accident that the historic common law cases and Statute of Monopolies,
of the early seventeenth century, which formally stated the right of
individuals to pursue callings of their own choosing, against the British
Crown's indiscriminate issue of letters patent, likewise set forth as an
exception the permissibility of such grants of monopoly privilege
"here any man by his own charge and industry, or by his own wit
or invention doth bring in new trade into the realm, or any engine
tending to the furtherance of a trade that was never used before...4

I. THE THEORY OF PATENTS

The history of the patent law has been marked by continuous controversy over its ethical, social and economic premises. The disputes are
reminiscent of those over the basic institutions of capitalism itself:
for example, is property theft, as Proudhon asserted, or an inducement and reward for productive effort: so with the patent, the question
has been raised, over and over: is it legalized monopoly, a license to
exploit consumers, capriciously distributed, or does it merely provide

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